Canadian Refugee Procedure/General Provisions

The court has stated that the purpose of the following collection of rules "is to give the [Divisions] the flexibility to control their own processes by applying rules liberally to deal with proceedings in an informal and expeditious manner."[1]

Rule 69 - No applicable ruleEdit

The text of the relevant rules reads:

General Provisions

No applicable rule
69 In the absence of a provision in these Rules dealing with a matter raised during the proceedings, the Division may do whatever is necessary to deal with the matter.

This rule relates to the common law that tribunals control their own processesEdit

This rule relates to the common law as articulated in Siloch v. Canada where Décary J.A. recalled the general rule that, “It is well settled that in the absence of specific rules laid down by statute or regulation, administrative tribunals control their own proceedings … subject to the proviso that they comply with the rules of fairness and, where they exercise judicial or quasi-judicial functions, the rules of natural justice.”[2]

Rule 70 - Power to change a rule, excuse a person from a rule, extend a time limit, or act on its own initiativeEdit

Powers of Division
70 The Division may, after giving the parties notice and an opportunity to object,
(a) act on its own initiative, without a party having to make an application or request to the Division;
(b) change a requirement of a rule;
(c) excuse a person from a requirement of a rule; and
(d) extend a time limit, before or after the time limit has expired, or shorten it if the time limit has not expired.

The procedural notice requirement in Rule 70 is a precondition for a panel to rely on itEdit

In engaging Rule 70 to amend the Rules, the RPD is required to take action, including by providing notice to parties that it is considering taking any of the actions listed in Rule 70, such as waiving a requirement of a rule. As noted in Cohen v. Canada, Rule 70 only applies when its requirements have been complied with, and it is not engaged if the Division does not take any explicit actions as required by the rule.[3] The requirement that before a Division of the IRB acts on its own initiative, it will give prior notice to the parties and give them an opportunity to object, was a substantive change to a previous draft of the Rules that resulted from the feedback of the Standing Joint Committee for the Scrutiny of Regulations.[4]

Rule 71 - Failure to follow a ruleEdit

Failure to follow rule
71 Unless proceedings are declared invalid by the Division, a failure to follow any requirement of these Rules does not make the proceedings invalid.

Effect of Rule 71 where the Division has explicitly changed the requirement of a ruleEdit

The Federal Court commented on the meaning of what is now Rule 71 in Cohen v. Canada, noting that this provision appears to relate to the authority of the RPD to act to change the requirement of a Rule. That is, the failure to follow a Rule once changed does not render a proceeding invalid.[5] This is exemplified by the follow decision from the RAD, interpreting its analogous rule, where the panel concluded that, despite the fact that an application to withdraw an appeal was not made in conformity with the relevant rule, it would nonetheless be accepted:

Rule 54 of the RAD Rules states that unless proceedings are declared invalid by the RAD, a failure to follow any requirement of these Rules does not make the proceedings invalid. Having analyzed the notice to withdraw submitted by the appellant on September 8, 2016, I am of the opinion that it is necessary, in the circumstances, to accept this withdrawal, even though it was not made in accordance with subrule 47(3) of the RAD Rules.[6]

Effect of Rule 71 where the Division has not explicitly changed the requirement of a ruleEdit

Rule 71 is also relevant to cases where a rule was not been followed, but this divergence from the rules was not explicitly authorized by the Division. Member Favreau of the Refugee Appeal Division commented on this in a case where the Minister had intervened in a case but, despite the requirement in Rule 29(2)(a) that the Minister identify the purpose of their intervention in their intervention notice, the Minister had not done so. The question for the Refugee Appeal Division in that case was whether that breach of the rules should lead to the original refugee determination proceeding being set aside. The RAD declined to set aside the RPD determination on the basis that the breach of the Rules was not necessarily a breach of procedural fairness:

The purpose of the Rules in question is intended to ensure a claimant knows the case against them. The RAD takes note that Rule 71 states that, unless proceedings are declared invalid by the Division, a failure to follow any requirement of these Rules does not make the proceedings invalid. While it can be true in some cases that a failure to follow the Rules may result in a breach of procedural fairness, it is not true in the present case. The RAD must consider what impact that breach of the Rules had on the affected parties, in this case, the Appellants.[7]

In this way, Rule 71 emphasizes that a failure to follow any requirements of the Rules does not, in and of itself, make proceedings invalid; such a breach may point, however, to the proceedings having been unfair.

ReferencesEdit

  1. Ahmed v. Canada (Citizenship and Immigration), 2018 FC 1157 (CanLII), para. 42.
  2. Siloch v. Canada (Minister of Employment and Immigration) [1993] F.C.J. No. 10 (FCA).
  3. Cohen v. Canada (Public Safety and Emergency Preparedness), 2018 FC 1101 (CanLII), para. 16 <https://www.canlii.org/en/ca/fct/doc/2018/2018fc1101/2018fc1101.html>.
  4. Immigration and Refugee Board of Canada, RPD Rules Regulatory Impact Analysis Statement, Date modified: 2018-07-04, Accessed January 3, 2020 <https://irb-cisr.gc.ca/en/legal-policy/act-rules-regulations/Pages/RiasReir.aspx>.
  5. Cohen v. Canada (Public Safety and Emergency Preparedness), 2018 FC 1101 (CanLII), para. 12 <https://www.canlii.org/en/ca/fct/doc/2018/2018fc1101/2018fc1101.html>.
  6. X (Re), 2016 CanLII 98458 (CA IRB), para. 3.
  7. X (Re), 2016 CanLII 107460 (CA IRB), para. 11 <https://www.canlii.org/en/ca/irb/doc/2016/2016canlii107460/2016canlii107460.html>.